Guarantee of the accused person's right todefense counsel - A comparative study of Voetnamese, German and American criminal procedure laws

LUND UNIVERSITY HOCHIMINH CITY

FACULTY OF LAW UNIVERSITY OF LAW

LUONG THI MY QUYNH

GUARANTEE OF THE ACCUSED PERSON’S RIGHT

TO DEFENSE COUNSEL – A COMPARATIVE STUDY

OF VIETNAMESE, GERMAN AND AMERICAN

CRIMINAL PROCEDURE LAWS

Field of Study: International and Comparative Law

Code: 62.38.60.01

DOCTORAL DISSERTATION OF LAW

HO CHI MINH CITY - 2011

LUND UNIVERSITY HOCHIMINH CITY

FACULTY OF LAW UNIVERSITY OF LAW

LUONG THI MY QUYNH

GUARANTEE OF THE ACCUSED PERSON’S RIGHT

TO DEFENSE COUNSEL – A COMPARATIVE STUDY

OF VIETNAMESE, GERMAN AND AMERICAN

CRIMINAL PROCEDURE LAW

Field of Study: International and Comparative Law

Code: 62.38.60.01

DOCTORAL DISSERTATION OF LAW

Swedish Supervisor Vietnamese Supervisor

Prof. Per-Ole Träskman Asst. Prof. Nguyen Thai Phuc

HO CHI MINH CITY - 2011

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Acknowledgements

On completing this dissertation, I would like to sincerely thank the professors,

scientists and staff at the Ho Chi Minh City College of Law, Ha Noi University of

Law, Vietnam, Faculty of Law - Lund University, Sweden, the Max Planck Institute

for Foreign and International Criminal Law - Germany, Suffolk University School

of Law (SU) in Boston, MA, US for their enthusiastic and valuable help. I would

also like to extend my thanks to Sida (the Swedish International Development

Agency) and the Board of Directors of the Project “Strengthening Legal Education

in Vietnam”. I especially wish to express my thanks to Asst. Prof. Bengt Lundell of

the Faculty of Law - Lund University who gave me great support and

encouragement during my work on the dissertation and helped me to finish the

work.

Those to whom I would also like to give my special thanks are my supervisors,

Prof. Per-Ole Träskman of Faculty of Law - Lund University and Asst. Prof.

Nguyen Thai Phuc of the Ministry of Justice of Vietnam. I would like to express my

deepest gratitude to all of you for your insightful comments and instructions which

guided me throughout the course of my research.

I do hereby extend my greatest thanks to Prof. Peter Westberg of Faculty of Law -

Lund University for instructing me from the beginning of this dissertation research.

His helps and thorough suggestions to my dissertation draft have brought me ideas

and thoughts to perfect my today complete dissertation. I am deeply grateful for all

your helps.

Particular thanks and gratitude go to the professors and doctors attending the

prolongation seminars who gave their assessments and made recommendations on

my dissertation throughout the last few years, especially Prof. Bernard M. Ortwein

of the Suffolk University School of Law (SU) in Boston, MA, US, and Asst. Prof.

Christoffer Wong of Faculty of Law, Lund University, Sweden.

During the course of my research, it was my good fortune to have received help and

encouragement from many professors, lecturers, administrative staff, and librarians

at the Faculty of Law - Lund University, Sweden. In particularly, I would like to

give special thanks to Prof. Christina Moëll, Prof. Hans Henrik Ligard, Prof. Lars

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Göran Malmberg, Asst. Prof. Chritian Häthén, Asst. Prof. Helén Örnemark-Hansen,

Hans Liepack, Anna Wiberg, Gunilla Wiklund and Philip Horowitz.

I would also like to thank my professors and colleagues at the Ho Chi Minh City

College of Law and Ha Noi University of Law, Vietnam for all their help and

support. Special thanks to go to Asst. Prof. Nguyen Van Luyen, Asst. Prof. Nguyen

Thai Phuc, Asst. Prof. Mai Hong Quy, Dr. Tran Thi Quang Vinh, Dr. Vo Thi Kim

Oanh and Dr. Nguyen Phuong Hoa.

Finally, I would like to express my deepest gratitude to my parents from the both

sides of my family, my husband, my son and my daughter for their warmest

support, care and love. I really appreciated it!

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Table of Contents

List of Abbreviations............................................................................................................vi

INTRODUCTION .................................................................................................................1

CHAPTER 1: BASIC ISSUES ON GUARANTEEING THE ACCUSED PERSON’S

RIGHT TO DEFENSE COUNSEL.....................................................................................12

1.1. Basic theoretical issues on the guarantee of the accused person’s right to defense

counsel.................................................................................................................................13

1.1.1. Historical views of the guarantee of the right to defense counsel ..........................13

1.1.2. Legal foundation of the right to defense counsel ....................................................18

1.1.2.1. Due Process of law .................................................................................................19

1.1.2.2. Principle of the Right to Fair trial..........................................................................23

1.1.3. Purpose of the right to defense counsel ...................................................................29

1.2. Guarantee of the right to defense counsel in international legal documents ........30

1.2.1. Overview of the legal documents connected with the guarantee of the right to

defense counsel ...................................................................................................................30

1.2.2. The right to defense counsel under international legal documents........................34

CHAPTER 2: GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE

COUNSEL UNDER VIETNAMESE CRIMINAL PROCEDURE LAWS........................42

2.1. Overview......................................................................................................................42

2.1.1. Background on Vietnamese criminal procedure .....................................................42

2.1.2. History and development of the right to defense counsel under Vietnamese

Criminal Procedure Law ....................................................................................................45

2.1.2.1. Period from 1945 to 1954.......................................................................................46

2.1.2.2. Period from 1955 to 1988 (before the coming into effect of Vietnamese Code of

Criminal Procedure)............................................................................................................48

2.1.2.3. The period from 1989 to the present.......................................................................50

2.2. The current laws of Vietnamese criminal procedure guarantees the right of the

accused to defense counsel ................................................................................................53

2.2.1. Right to defense counsel of the accused is a basic right .........................................53

2.2.2. The Criminal Procedure Code on the defense counsel ...........................................54

2.2.2.1. Three kinds of defense counsel ...............................................................................54

2.2.2.2. Rights and obligations of defense counsel under the provisions of the Code of

Criminal Procedure .............................................................................................................58

2.2.3. The responsibility of the Competent Authorities in guaranteeing the accused’s

right to defense counsel ......................................................................................................60

2.2.3.1. The responsibility of the Investigating Bodies........................................................60

2.2.3.2. The responsibility of the Procuracies.....................................................................61

2.2.3.3. The responsibily of the Courts................................................................................62

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2.3. Comments on the practice of guaranteeing the right to defense counsel to accused

persons in Vietnamese criminal procedure .....................................................................68

2.3.1. Achievements made regarding the guarantee of the right to defense counsel of the

accused ................................................................................................................................68

2.3.1.1. Legislative achievements ........................................................................................68

2.3.1.2. Achievements in the area of implementation of the law .........................................71

2.3.2. Shortcomings in the practice of the right to defense counsel .................................75

2.3.2.1. Regarding normative regulations...........................................................................75

2.3.2.2. Shortcomings in the application of the law ............................................................88

CHAPTER 3: GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE

COUNSEL UNDER GERMAN CRIMINAL PROCEDURE LAWS..............................100

3.1. Overview of the German criminal procedure ........................................................101

3.1.1. Sources of law .........................................................................................................101

3.1.2. The stages in the procedure and the role of defense counsel................................103

3.1.2.1. The Stages in the Procedure .................................................................................103

3.1.2.2. Role of defense counsel.........................................................................................109

3.2. Aspects of guaranteeing the right to defense counsel in German criminal

procedure..........................................................................................................................112

3.2.1. Time of guaranteeing the right to defense counsel ...............................................112

3.2.2. Mandatory appointment of defense counsel ..........................................................114

3.2.2.1. Mandatory defense counsel ..................................................................................114

3.2.2.2. Appointement defense counsel..............................................................................115

3.2.3. Legal aid..................................................................................................................117

3.2.4. Selection and Waiver of defense counsel...............................................................120

3.2.5. Effective defense .....................................................................................................121

3.2.5.1. Right of access to the Case File............................................................................122

3.2.5.2. The right to adequate time and facilities for preparation of the defense .............125

3.2.5.3. Communication between defense counsel and client............................................126

3.3. Actual status of the guarantee of the right to defense counsel..............................129

CHAPTER 4: GUARANTEE OF THE ACCUSED PERSON’S RIGHT TO DEFENSE

COUNSEL UNDER AMERICAN CRIMINAL PROCEDURE LAWS..........................133

4.1. An overview of US Criminal Procedure .................................................................133

4.1.1. Sources of law .........................................................................................................134

4.1.2. Adversary system of Justice ....................................................................................136

4.1.3. Legal Foundation of Due Process of law...............................................................141

4.2. Guarantee of the accused person’s right to defense counsel under US criminal

procedure..........................................................................................................................144

4.2.1. Generality of the guarantee of the right to defense counsel in US criminal

procedure...........................................................................................................................144

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4.2.2. Aspects of the guarantee of the right to defense counsel ......................................151

4.2.2.1. Time for theapplication of the right......................................................................151

4.2.2.2. Selection and Waiver of the right to defense counsel ...........................................158

4.2.2.3. Effective defense counsel ......................................................................................163

4.2.2.4. Defense fee............................................................................................................171

4.3. Status of the guarantee of the right to defense counsel in the US criminal

procedure law...................................................................................................................174

4.3.1. Strong points...........................................................................................................174

4.3.2. Actual status of the guarantee of the right to defense counsel in the US criminal

procedure system ..............................................................................................................177

CHAPTER 5: EVALUATION, COMPARISON AND RECOMMENDATIONS ON THE

PERFECTION OF THE VIETNAMESE CRIMINAL PROCEDURE LAWS IN TERMS

OF THE GUARANTEEING OF THE RIGHT TO DEFENSE COUNSEL.....................184

5.1. Assessment and comparison of the laws of Vietnam, Germany and the United

States regarding the guaranteeing of the accused’s right to defense counsel.............185

5.1.1. General review ........................................................................................................185

5.1.2. Particular assessments............................................................................................191

5.1.2.1. The time for guaranteeing the right to defense counsel........................................192

5.1.2.2. Counsel’s fees and the guarantee of the right to free defense counsel for the

indigent ..............................................................................................................................194

5.1.2. 3. Appointed Defense Counsel.................................................................................196

5.1.2.4. Right to effective defense counsel .........................................................................200

5.2. Recommendations for reforming the Vietnamese Criminal Procedure Laws

regarding the guarantee of the right to defense counsel ..............................................204

5.2.1. Some guiding recommendations............................................................................204

5.2.1.1. Encouraging adversarial activities and recognizing adversariality as a

fundamental, important principle of criminal procedure ..................................................204

5.2.1.2. Raising the capacity and consciousness of competent authorities and litigating

officials...............................................................................................................................207

5.2.2. Specific recommendations......................................................................................209

List of Literature and Sources of Information ...................................................................221

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List of Abbreviations

ABA American Bar Association

AfCHPR African Charter on Human and Peoples’

Rights

AmCHR American Convention on Human Rights

Art. Article

Arts. Articles

BGH Bundesgerichtshof (German Federal Court

of Appeals)

BGHSt Entscheidungen des Bundesgerichtshofes

(Decisions of German Federal Court of

Appeals)

BverfG Bundesverfassungsgerich (German Federal

Constitution Court)

BVerfGE Entscheigungen des

Bundesverfassungsgerichts (Decisions of

the German Federal Constitutional Court)

BVerfGG Bundesverfassungsgerichts-Gesetz (Federal

Constitutional Court Act)

CCP Code of Criminal Procedure

EC European Commission

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EGGVG Gerichsverfassungsgesetz (The German

Courts Organization Act)

EU European Union

GG Grundgesetz (The Basic Law or German

Federal Constitution)

GVG Gerichsverfassungsgesetz (The German

Courts Organization Act)

HRC The UN Human Rights Committee

ICC International Criminal Court

ICCPR International Convenant on Civil and

Political Rights

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JGG Judendgerichtsgesetz (Juvenile Court Act)

NLADA The United States of America National

Legal Aid & Defender Association

StGB Strafgesetzbuch (The German Criminal

Code)

StPO Strafprozeβordnung (German Code of

Criminal Procedure)

StV Strafverteidiger (Defence attorney in

German)

UDHR Universal Declaration of Human Rights

UN United Nations

UNDP United Nation Development Program

US United States of America

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INTRODUCTION

Background

Guaranteeing human rights in general and the legitimate rights and interests of the

accused in criminal proceedings in particular has always been considered a key task

of the law and of the state’s institutions. In other words, guaranteeing such

procedural rights is an important part of the overall guarantee of people’s rights. A

society is generally considered a civilized and progressive one when every citizen is

legally protected by a fair and democratically-run legislative system. As for persons

accused of criminal activity in particular, despite their responsibility for the legal

consequences of their violations of the law, their legitimate rights and interests must

still be guaranteed. One of the rights of the accused that the state must guarantee is

the right

The

to defense counsel.

constitutions and laws of most nations have indeed recognized the right to

defense counsel as a basic procedural right of the accused and the state is

responsible for guaranteeing its availability. At the international level, the right to

defense counsel has also been recognized in most international legal instruments on

human rights.

1 The details of the relevant legal instruments all show that the

guarantee of the right to defense counsel is an important aspect of the guarantee of

the right to a fair trial. However, criminal procedure is not necessarily an equal

struggle between the opposing parties.2 This means that, for fairness to prevail, all

parties in the proceedings - including the prosecution and the defense - must each be

vested with the opportunity to perform their functions.

3 On this basis, the accused

must be supported by defense counsels - who are qualified in terms of legal

knowledge and capable of participating in proceedings in a manner which is also

fair to the prosecution. Guaranteeing the right to defense counsel involves ensuring

that the accused is supported by defense counsel and guaranteeing the requisite

conditions for defense counsel so that they can protect their client against the

allegations of the state

1 Article 11(1) of the Universal Declaration on Human Rights (UDHR), Article 14 (3) of the International

Convention on Civil and Politics Rights (ICCPR), Article 6.3 (c) of the European Convention on Human

Rights (ECHR), Article 8 of the American Convention on Human Rights (AmCHR), Article 7.1 (c) of the

African Convention on Human and People’s Rights (AfCHPR). 2 Nguyễn Thái Phúc, Vietnam criminal proceeding model - theoretical and practical issues (Mô hình Tố tụng

hình sự Việt Nam - Những vấn đề lý luận và thực tiễn ), Legal Science Journal, Issue 5(42), 2007. 3 Salvatore Zappalà, Human Rights in International Criminal Procedure, Oxford, 2005, pp. 109-125.

.

2

Currently, the tasks of guaranteeing human rights and improving the law of criminal

procedure have attracted the attention of many nations. However, one ofthe

difficulties that such nationsface inthe process is that of assuring a balance

betweenthe various objectives ofcriminal procedure; that is the balance between the

task of handling crime and maintaining strict legislation and the guaranteeing and

effective protection of the procedural rights of the accused. In a few nations, the

procedural rights of the accused, including the right to defense counsel, are not fully

guaranteed, and are, indeed, often violated. According to surveys by a group of

researchers, the right to defense counsel at the pre-trial stage is not always

guaranteed even in many European nations.

4 According to the National Committee

on the Right to Counsel,

5 in the United States, the constitutional right to counsel for

defendants who cannot afford to hire a lawyer despite facing the possibility of

imprisonment is weakened as many states and localities still fail to provide

competent criminal defense counsel. In very many countries, insufficient funding

and/or oversight of public defender systems has led to unacceptable caseloads,

supervision and training, resulting in inadequate representation. Representation is

frequently perfunctory and so deficient as not to amount to representation at all. In

fact, in both Europe and America, there have been moves towards the continued

development and improvement of legislation in order to provide complete legal

mechanisms which will protect the accused’s right to defense counsel. Basing

themselves on the Lisbon Treaty,

6 European member states have been taken a

number of steps to foster and establish a complete and coherent mechanism

guaranteeing the basic procedural rights of the accused in EU as the whole.7

4 For instance, national legislation may provide the right for a lawyer immediately on arrest but if there is no

system by which a lawyer can be contacted on a 24-hour basis then the arrested person may not be in a

position to exercise their right to counsel effectively. Beside that, the law may provide for a right to cross￾examine witnesses or to call evidence, but without lawyers who actively use these rights on behalf of

defendants, they will not be available in practice. See Ed Cape, Zaza Namoradze, Roger Smith, Taru

Sponken, Effective Criminal Defense in Europe, Antwerp-Oxford-Portland, Intersentia, 2010, ISBN 978-94-

000-005-7, p. 2. 5 This organization was established in 2004 by the Constitution Project Group which is working to reform the

nation’s broken criminal justice system and to strengthen the rules of law through scholarship, consensus

policy reforms, advocacy, and public education.

See available at < http://www.constitutionproject.org/committees/righttocounselcommittee.php>. 6 The Treaty entered into force on 1 December 2009. 7 In 2009, the European Council adopted the Stockholm programme, setting out the EU strategy in the area of

freedom, security and justice for the period 2010‐2014. One of the areas highlighted for action was

procedural rights. The first measure, the Directive on the right to an interpreter and to the translation of

documents during the investigation and the trial, was approved in October 2010. This is something of a

landmark, as the first criminal justice measure to be adopted by the co‐decision procedure and the first to

address safeguards for the accused. It guarantees the right to interpreters throughout criminal proceedings,

including when receiving legal advice, as well as the translation of all essential documents. The next roadmap

measure to be discussed will be the right to legal advice.

As to

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the US, it is impossible that lawyers there are not aware of the latest Report of the

National Committee on the Right to Counsel8 which appeared in April 2009. This

Organization has used the recommendations in this report to try and educate state

and federal policy makers regarding the critical reforms necessary to achieve a truly

fair criminal justice system for all individuals.9 In China and other countries in Asia

criminal justice systems have been reformed. One of the key tasks of these reforms

is to improve the provisions of the current laws on criminal procedure concerning

the procedural rights of the accused and ensure they are in line with international

standards.

10 Currently, China has amended the Law on Lawyers to prepare the

ground for the ratification of the ICCPR.11

In Vietnam, the settlement of criminal cases tends to indicate that incorrect

judgments occur which naturally prejudices the legitimate rights and interests of

citizens, includingthe right to have defense counsel in criminal cases. This results

from various causes, of which the overlapping and contradictory nature of the laws

is one. Even though the Vietnamese Criminal Procedure Code has undergone

several amendments and supplements, it has only partly overcome its existing

shortcomings. The legal rights and interests of the accused have not been fully

guaranteed and are often violated. Under these circumstances, the State must clearly

show the intent to speedily improve the legal system in general and the Criminal

Procedure Code in particular. As have many other nations around the world,

Vietnam has been carrying out a comprehensive reform of criminal justice. One of

the key tasks of the reform is to expand the proceedings at criminal trials, in which

the need for further expansion of the rights of defense counsel and the accused is

emphasized.12

<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:115:0001:0038:en:PDF>. 8 Founded in 2004 in the framework of the Constitution Project,

<http://www.constitutionproject.org/cjp/righttocounsel.php>. 9 This Report named “Justice Denied - America’s Continuing Neglect of Our Constitutional Right to

Counsel” has been supported by generous contributions from the Open Society Institute and the Wallace

Global Fund. This Report is available at <www.constitutionproject.org> and <www.nlada.org>. 10 The Republic of China has signed but not ratified the ICCPR. To prepare for its ratification, and implement

the key project of the reform of the criminal justice system, China continued working towards making its

law of criminal procedure more compatible with international standards on fair trials and human rights.

See available at < http://www.icclr.law.ubc.ca/china_iiscj/criminal_proc/index.html >. 11 According to the report titled Assessment Report on the National Human Rights Action Plan of China

(2009-2010), <http://www.chinadaily.com.cn/china/2011-07/14/content_12904570.htm>. 12 Resolution 08/NQ/TW dated 2 January 2002 of the Politburo prescribing the objectives of judicial reform

and improving the quality of judicial services, and Resolution 49/NQ/TW dated 2 June 2005 of the Politburo

on “Judicial Reform Strategy until 2020”.

This is a firm basis on which to improve the fairness of the

legislation in general and the guaranteeing of the accused’s right to defense counsel

in particular.

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The above shows that guaranteeing procedural rights in general and the right to

defense counsel in particular is a global concern and not merely a matter affecting

each nation. As such, the expansion of international cooperation in the fight against

crime in general and the concomitant reform of criminal procedure in particular is

an objective necessity in line with the general trend towards legal harmonization.

This requires Vietnam to continue further speeding up the process of judicial reform

in order to minimize the impact of current limitations. Wishing to contribute to the

enhancement of the effectiveness of improving the law regarding the right to

defense counsel, the author chose to undertake research at PhD level on the theme

Thirdly, the practical application of Vietnamese criminal procedure laws is poorer

than the statutory regulations would anticipate. The knowledge and professional

conduct of persons conducting proceedings and of counsel still contain

shortcomings and mismatches. This may affect or even damage the rights and

interests of accused persons involved in proceedings. As such, it is advisable to

“Guarantee of the accused person’s right to defense counsel - A comparative

study of Vietnamese, German and American Criminal Procedure Laws (Bảo đảm

quyền có người bào chữa của người bị buộc tội - So sánh giữa luật tố tụng hình

sự Việt Nam, Đức và Mỹ). In the author’s opinion, the research should be based on

the following theoretical and practical foundations:

First, like Germany, the US and many other nations in the world, Vietnam pays

considerable attention to the setting up and improving of legal instruments in the

field of criminal procedure which relate to the guarantee of the procedural rights of

the accused, of which the guarantee of the right to defense counsel is one of the

most important. As a result, studying and comparing the legal mechanisms

guaranteeing the right to defense counsel in these three nations will be necessary for

establishing its foundations.

Secondly, Vietnamese, German and US criminal procedure law have all recognized

that the right to defense counsel is a fundamental procedural right of the accused

that needs to be fully guaranteed. Despite key successes in legislative aspect, there

are a number of shortcomings in the regulations that need to be analyzed, clarified

and improved. As to Vietnam, difficulties and problems regarding both the

awareness and the practical application of these regulations have not been resolved.

My theme may lead me to explore the contents of a number of laws that need to be

improved.

5

study measures to remedy such circumstances.

Fourthly, researching and comparing the criminal procedure laws of Vietnam and

those of certain nations other regarding the guarantee of the right to defense counsel

is a sound requirement in line with the general trend towards legal harmonization.

This will give Vietnam opportunities to study and learn from experience, in a

selective manner, when making, amending, supplementing and applying criminal

procedure laws on the guarantee of the right to defense counsel. On such a basis,

Vietnam can improve the statutory regulations on the right to counsel, and enhance

the effectiveness of the investigation, prosecution and judgment of criminal cases.

Purposes

This dissertation has two aims. The first is to study the laws of Vietnam, Germany

and the US regarding the guarantee of the accused’s right to defense counsel. To

serve this purpose, the dissertation focuses on research which will clarify in a

scientific manner the provisions of the applicable criminal procedural laws and

materials providing, in each country, the practical context of the guarantee of the

right to defense counsel in the countries selected. The foregoing research has been

conducted to answer the question of how the accused’s right to defense counsel is

guaranteed in criminal procedure in Vietnam, Germany and the United States. The

second aim of this dissertation is to propose suitable and practicable solutions to

improving the relevant criminal procedure laws of Vietnam and thus to contributing

to the enhancement of the effectiveness of the settlement of criminal cases and the

handling of crimes while still protecting human rights.

In line with these two aims, this dissertation will consider the following matters:

First, giving a comparison between the scientific and historical perspectives on

guaranteeing the right to defense counsel and clarifying the common theoretical

basis for guaranteeing this right in criminal procedure.

Secondly, clarifying the contents of the applicable provisions of international law

and the laws of Vietnam, Germany and the United States on guaranteeing the right

to defense counsel. This will be effected by the comparative method with a view to

finding similarities and differences, and then explaining such similarities and

differences; concurrently, analyzing and pointing out the advantages and limitations

of the applicable criminal procedure laws of.

6

Thirdly, learning about and giving certain assessments on the actual situation of the

guarantee of the right to defense counsel in Vietnam, Germany and the United

States again by the comparative method, for the purpose of acknowledging the

strengths and weaknesses of the laws in each nation.

Finally, on the basis of this research and the study of the theoretical foundation and

applicable laws as well as the practical application of the laws of Germany and the

United States on the right to defense counsel, the dissertation proposes a number of

ways to improve the applicable laws of Vietnam and the effectiveness of the

guarantee of this right in criminal procedure.

Delimitation

Criminal procedure has a close link to human rights. The punishment of crime must

go hand in hand with the safeguarding of procedural rights. One of the most

important procedural rights is the accused’s right to a defense counsel. For such a

right to be effectively guaranteed there must be at first an effective safeguarding

mechanism. The present research project lies in the field of criminal procedure law

and uses a comparative approach. However, it explores questions concerning the

right to defense counsel from a legal perspective rather than from an economic or

social one. That is why the immediate concern will be the theoretical standpoints

and current provisions of the criminal procedure laws of Vietnam, Germany and the

United States which regulate the right to defense counsel as well as the practice of

the authorities and the courts in their judgments. In addition, international legal

documents directly related to the research topic will also be analysed to investigate

the conformity of these national laws to international standards.

Research methods

As mentioned, the objective of the present research is to study the provisions of

Vietnamese, German and the United States

The universal tasks of sciences, including legal science, are description,

explanation, evaluation and prediction. For the present research, the legal dogmatic

method will be used to interpret, clarify, assess the content of valid legal norms,

laws regulating the right to defense

counsel in order to propose recommendations for improving Vietnamese law. For

that objective to be achieved, the author uses a number of the research methods

belonging to legal science. The following paragraphs will present why and how they

are used.